69B-176.022. Mediation of Bodily Injury and Property Damage Claims (Transferred)

(1) Scope of rule. This rule implements Section 627.745, F.S., and applies to any claim filed with an insurer for bodily injury in an amount of $10,000 or less or any claim for property damage in any amount, arising out of the ownership, operation, use, or maintenance of a motor vehicle when a party demands mediation before a lawsuit has been filed.

(2) Definitions. The following definitions shall apply for purposes of this rule:

(a) “Applicant” refers to the party demanding mediation of a claim prior to the institution of litigation.

(b) “Complete request for mediation” means that the applicant has demanded mediation by filing Form DFS-H2-510 with a response to each query above the applicant’s signature line and proper payment attached thereto for the amount specified on the Form, and the respondent has paid their share of the costs of mediation.

(c) “Department” means the Department of Financial Services or its designee.

(d) “Natural person” means human being.

(e) “Respondent” means the party not initially requesting mediation.

(f) “Service office” means a designated office of the Bureau of Consumer Assistance, Division of Consumer Services, Department of Financial Services.

(3) Service Offices. For the purposes of designating mediators and for disposition of mediation conferences the State of Florida shall be divided among the following designated service offices:

(a) Daytona Beach Service Office shall be composed of the following counties: Flagler, Marion, Putnam, and Volusia.

(b) Fort Lauderdale Service Office shall be composed of Broward county.

(c) Fort Myers Service Office shall be composed of the following counties: Charlotte, Collier, DeSoto, Glades, Hendry, Highlands, and Lee.

(d) Jacksonville Service Office shall be composed of the following counties: Alachua, Baker, Bradford, Clay, Columbia, Dixie, Duval, Gilchrist, Hamilton, Lafayette, Levy, Nassau, St. Johns, Suwannee, and Union.

(e) Miami Service Office shall be composed of Dade and Monroe counties.

(f) Orlando Service Office shall be composed of the following counties: Brevard, Citrus, Lake, Orange, Osceola, Seminole, and Sumter.

(g) Pensacola Service Office shall be composed of the following counties: Bay, Calhoun, Escambia, Gulf, Holmes, Jackson, Okaloosa, Santa Rosa, Walton, and Washington.

(h) St. Petersburg Service Office shall be composed of the following counties: Manatee, Pinellas, and Sarasota.

(i) Tallahassee Bureau of Consumer Assistance Service Office shall be composed of the following counties: Gadsden, Franklin, Jefferson, Leon, Liberty, Madison, Taylor, and Wakulla.

(j) Tampa Service Office shall be composed of the following counties: Hardee, Hernando, Hillsborough, Pasco, and Polk.

(k) West Palm Beach Service Office shall be composed of the following counties: Indian River, Martin, Okeechobee, Palm Beach, and St. Lucie.

(4) Request for Mediation.

(a) An applicant demanding mediation shall file with the Department a request for mediation on Form DFS-H2-510, “Request for Mediation,” rev. 10/92, which is hereby adopted herein and incorporated by reference. This Form may be obtained from the Bureau of Consumer Assistance, Division of Consumer Services, Department of Financial Services, 200 East Gaines Street, Tallahassee, FL 32399-0300. A complete request for mediation shall be considered filed only when all costs of mediation are received by the Department. The Department shall notify the applicant in writing or by telephone if a filed request for mediation does not constitute a complete request for mediation. Notice shall occur within a reasonable period of time after receipt of the incomplete request for mediation.

(b) The costs of mediation shall be $100 per party. These costs shall be specified on Form DFS-H2-510 and shall be disbursed to the Department.

(c) Upon receipt of a request for mediation, the Department shall issue an invoice to the respondent, specifying the respondent’s share in the costs of mediation. The respondent shall make payment on or before the due date which shall be indicated on the invoice, unless the provisions of paragraph (4)(e) are met. The due date shall be 20 days after the date of the invoice.

(d) All payments by the parties shall be made by certified check, money order, or insurance company check or draft.

(e) If a respondent objects to the mediation conference and refuses to participate, the respondent must, on or before the due date of the invoice, notify the Department in writing of their objection and refusal and specifically state the reasons therefor. These reasons shall be deemed confidential and exempt from the provisions of Section 119.07(1), F.S., and shall not be publicly disclosed without the written consent of all parties to the dispute. Any research or evaluation effort directed at assessing program activities or performance shall protect the confidentiality of such information.

(5) Mediators.

(a) Appointment. The Bureau of Agent and Agency Licensing, Department of Financial Services, shall appoint as mediators those persons who meet the qualifications set forth in Section 627.745(3)(b), F.S. Persons wishing to be appointed as mediators shall submit their qualifications to the Bureau of Agent and Agency Licensing, Department of Financial Services, 200 East Gaines Street, Tallahassee, FL 32399-0300, on Form DFS-H2-591, “Application for Appointment as a Mediator,” rev. 1/93, which is hereby adopted and incorporated by reference.

(b) List of Appointed Mediators. The Bureau of Agent and Agency Licensing, Department of Financial Services, shall maintain a list of all appointed mediators, which list shall include the mediator’s names, addresses, telephone numbers, social security numbers, date of entry to the list, and the counties in which the mediators are permitted to conduct mediation conferences. The Department shall assign a mediator number to each appointed mediator.

(c) Mediator Assignment To Service Offices. Mediators shall be assigned to the service offices serving the counties in which they are qualified and willing to mediate. The Department shall maintain a list of all appointed mediators assigned to each service office. Mediators shall be added to each service office list in the order in which they are appointed.

(d) Mediator Selection. Upon receipt of a complete request for mediation, the Department shall select a mediator from a list of mediators assigned to the appropriate service office. Upon the selection of a mediator, the Department shall notify the parties and the selected mediator in writing of the selection. Each party may once reject the selected mediator. Any rejection of a mediator must be in writing and received by the Department within 10 days of the date of the written notice of the mediator selection. If two mediators have been rejected, the third selected mediator may not be rejected. A mediator may refuse to conduct a particular mediation. If there are no mediators appointed or designated to conduct mediation conferences which correspond to the service office a mediator shall be designated as randomly determined by the Department.

(e) Grouping of Assignments. Requests for mediation received from applicants which correspond to a service office will, if feasible, be grouped together and assigned to a single mediator. A mediator will be assigned a maximum of four mediation conferences under a single assignment. Group mediation conferences shall be set in sequence by the Department at the service office.

(f) Procedure and Conduct. All mediation conferences shall be conducted in accordance with the Florida Rules for Certified and Court-Appointed Mediators, as set forth in rules 10.020-10.290, Florida Rules of Civil Procedure, and other consistent rules of conduct as promulgated by the Supreme Court of Florida. Mediators shall have the same responsibilities to the Department as they have to the courts under the Florida Rules for Certified and Court-Appointed Mediators. All mediators acting under this rule shall at all times conduct themselves in a professional manner consistent with the standards of their respective professions and the standards for mediators which may be adopted from time to time by the Supreme Court of Florida. The Florida Rules for Certified and Court-Appointed Mediators shall be read in a manner consistent with this rule and any conflict between this rule and the Florida Rules for Certified and Court-Appointed Mediators shall be resolved in favor of this rule. The mediator may communicate privately with the person representing either side of the dispute during a mediation.

(g) Complaints; Discipline. Complaints concerning a mediator shall be written and submitted to the Bureau of Consumer Assistance, Department of Financial Services, 200 East Gaines Street, Tallahassee, Florida 32399-0321. The Bureau of Consumer Assistance shall review all alleged instances of dishonest, incompetent, fraudulent, or unethical behavior on the part of a mediator and all instances in which the mediator allegedly failed to promptly and completely respond to proper requests from the Department and all instances in which the actions or failure to act on the part of the mediator violate this rule or standards set forth in this rule or are counter to the intent and purpose of this mediation program or this rule or Section 627.745, F.S. In such instances, the Department shall institute proceedings in accordance with Chapter 120, F.S., to revoke the appointment of any mediator whom the Bureau of Consumer Assistance finds has acted in a manner which shows that individual to be unsuited to be a mediator in this program.

(h) Invoice. Mediator shall bill the Department for their services associated with the automobile claim mediation conference by filing Form DFS-H2-1121, (rev. 11/99) “Invoice”, which is hereby adopted herein and incorporated by reference. This form may be obtained from the Bureau of Consumer Services Assistance, Division of Consumer Services, Department of Financial Services, 200 East Gaines Street, Tallahassee, FL 32399-0300.

(6) Mediation Conference.

(a) Location. If the applicant is a natural person, the mediation conference shall be held at the service office which corresponds to the applicant’s county of residence. If the applicant is not a natural person, then the mediation conference shall be held at the service office which corresponds to the respondent's county of residence. If neither party is a natural person, then the mediation conference may be held at a location agreed to by the mediator and the parties. Before scheduling a mediation conference the mediator will contact the service office administrator to determine the availability of service office facilities to accommodate the mediation conference. If no facilities are available at the service office for the particular mediation conference then the service office administrator shall designate an alternative location for the mediation conference. If the parties determine that the assigned service office is inconvenient or impracticable, the parties and the mediator may agree to conduct the mediation conference at an alternative location. The mediator will notify the parties and the Department of the exact time, date, and location of the conference.

(b) Telephonic Mediation. Upon written consent of all parties, the mediation conference may be held by telephone if an in-person meeting of the parties and the mediator is inconvenient. The Department shall be advised in writing of the telephone mediation. The person or entity requesting that the mediation conference be held by telephone shall pay all telephone toll charges.

(c) Timing and Continuances. The mediation conference shall be held within 45 days after receipt by the Department of a complete request for mediation. Upon application by any party to the mediator for a continuance, the mediator shall, for good cause shown or if neither party objects, grant a continuance and shall notify all parties of the date and place of the rescheduled conference. If the applicant demonstrates to the mediator, on Form DFS-H2-510, the need for an expedited mediation conference due to an undue hardship, the conference shall be conducted at the earliest date convenient to all of the parties and the mediator.

(d) Attendance. All natural persons who have an interest in the claim upon which the mediation conference is based shall attend the mediation conference and be fully authorized to make an agreement to completely resolve the claim. All corporate parties to the claim upon which the mediation conference is based shall attend the conference in the person of a corporate representative who has full knowledge of the facts of the claim and is fully authorized to make an agreement to completely resolve the claim.

(e) Good Faith Negotiation. All parties shall negotiate in good faith. By participating in the mediation process under these rules, the participants agree to negotiate in good faith to attempt to resolve the claim and agree to remain in the mediation conference until the claim is resolved or until the mediator declares an impasse. There is no requirement that the claim must be resolved in mediation.

(7) Disbursement of Funds. The funds paid by the parties shall be disbursed as follows:

(a) Completed Mediation Conference. If the mediation conference is held, 90% of the costs of mediation shall be disbursed to the mediator. The remaining 10% of the costs of mediation shall be deposited in the Insurance Regulatory Trust Fund.

(b) Cancellation. If a mediation conference is cancelled by a party for reason of settlement or for any other reason, the parties shall notify the mediator and the Department upon cancellation. If the mediation conference is not held due to cancellation, 70% of the individual party’s paid costs of mediation shall be returned to the paid parties. Ten percent of the costs of mediation shall be deposited in the Insurance Regulatory Trust Fund. The mediator shall receive 20% of the costs of mediation.

(c) Cancellation Due To Absence. If a mediation conference is cancelled due to failure of a party to attend a conference, then the attending party shall be returned his paid share of the costs of mediation. The absent party will be refunded nothing. The mediator shall receive 80% of the remaining costs of mediation, and the remaining 20% of the costs of mediation shall be deposited in the Insurance Regulatory Trust Fund. Failure of a party to arrive at the mediation conference within 30 minutes of the conference’s starting time shall be considered an absence.

(d) Rescheduling a Cancelled Mediation Conference. If a party wishes to mediate a claim after cancellation, the party must complete and file an original application with the Department as set forth above.

(e) Any disputes regarding the amount of disbursement of funds shall be resolved by the Department through its Chief, Bureau of Consumer Assistance, Division of Consumer Services.

(f) Any expenses associated with the mediation conference, such as travel, telephone, postage, meals, lodging, facilities, and other related expenses, shall be borne by the party, mediator or other person incurring the expense.

(g) The Department reserves the right to reduce fees based on consumer surveys and cost analysis.

(8) Post-Mediation.

(a) At the conclusion of the mediation conference, the mediator shall report to the Department the results of the mediation using the space provided on Form DFS-H2-510. Failure of the mediator to promptly report shall be grounds for review of the mediator’s appointment.

(b) Any demand for refund by a party to a mediation conference shall be filed in writing with the Department within 10 days of the last mediation conference at issue.

Rulemaking Authority 624.308(1), 627.745(4) FS. Law Implemented 624.307(1), 626.171, 627.745 FS. History–New 3-14-93, Amended 8-6-98, 9-17-01, Formerly 4-176.022.